MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 February 2001                             
	DOCKET NUMBER:   AR2000047880

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas Lanyi		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                       records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Award of the Good Conduct Medal.  He states that he earned the Good Conduct Medal but never received it.  He lists September 2000 as the date of discovery, but offers no reason why it is in the interest of justice to favorably consider the request.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant's military records show he enlisted on 1 June 1967, completed training as a clerk typist and served a tour of duty in Vietnam and one in Japan.  He was separated on 25 May 1970 and transferred to the Army Reserve in pay grade E-5.    He had 3 years, 2 months and 26 days creditable service and no lost time.  His proficiency and conduct evaluations were all “Excellent” except for a rating of “Good” on his final efficiency evaluation.  His DA Form 20 (Enlisted Qualification Record) shows “NFC FOR GCM 24 May 1970” in block 42, Remarks.  

Army Regulation 600-8-22 also provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  A record of punishment is not automatically disqualifying.  However, at that time, a single efficiency rating of less than excellent was disqualifying.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  Current practice requires that the commander provide written notice of non-favorable consideration and permits the individual to respond.  At that time, non-favorable consideration was normally noted on the DA Form 20.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when it finds it would be in the interest of justice to do so.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 25 May 1970, the date of his separation from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 25 May 1973.

The application is dated 12 September 2000 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__TL ___  __RVO __  __WTM__  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2000047880	
SUFFIX		
RECON		
DATE BOARDED	20010206	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION		
REVIEW AUTHORITY		
ISSUES         1.	142.00	
2.	107.00	
3.		
4.		
5.		
6.